2015 NBCA 32, 2015 NBCA 32

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 21-14-CA HARRY McKENNA APPELLANT HARRY McKENNA APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE McKenna v. R., 2015 NBCA 32 McKenna c.

R., 2015 NBCA 32 CORAM: The Honourable Justice Deschênes The Honourable Justice Bell The Honourable Justice Quigg CORAM : l’honorable juge Deschênes l’honorable juge Bell l’honorable juge Quigg Appeal from a decision of the Court of Queen’s Bench: November 4, 2013 (conviction) January 20, 2014 (sentence) Appel d’une décision de la Cour du Banc de la Reine : le 4 novembre 2013 (déclaration de culpabilité) le 20 janvier 2014 (prononcé de la peine) History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard: October 29, 2014 Appel entendu : le 29 octobre 2014 Judgment rendered: May 28, 2015 Jugement rendu : le 28 mai 2015

Reasons for judgment by: The Honourable Justice Deschênes Motifs de jugement : l’honorable juge Deschênes Concurred in by: The Honourable Justice Bell Souscrit aux motifs : l’honorable juge Bell Dissenting reasons by: The Honourable Justice Quigg Motifs dissidents : l’honorable juge Quigg Counsel at hearing: For the appellant: Margaret Gallagher, Q.C. For the respondent: Kathryn Gregory Avocats à l’audience : Pour l’appelant : Margaret Gallagher, c.r. Pour l’intimée : Kathryn Gregory THE COURT The conviction is set aside and a new trial ordered.

LA COUR Annule la déclaration de culpabilité et ordonne la tenue d’un nouveau procès. The judgment of the Court was delivered by DESCHENES, J.A. I. Introduction [ 1 ] The appellant, Harry McKenna, was convicted of the second degree murder of Kirk Blair. Both of them had done some renovation work at Mr. Galbraith’s home, and the appellant was upset to learn from Mr. Galbraith that Mr. Blair had been paid in full for the work, but apparently had not paid the appellant his share for that particular job. The appellant alleged that Mr.

Blair owed him $15,000 for renovation work done together as partners, including the job mentioned and others as well. After a day of heavy drinking, accompanied by a friend, he loaded a 16 gauge shotgun and attended the residence of Mr. Blair in order to obtain the latter’s Personal Identification Number (PIN) so he could withdraw money from Mr. Blair’s account. [ 2 ] The appellant did not testify, but gave statements to the police in which he alleges, on several

occasions, that he attended the premises with a loaded shotgun so as to intimidate or scare Mr. Blair into handing over his PIN, and that he never intended to shoot at Mr. Blair. Answering to knocks on the door, Mr. Blair was confronted with the appellant holding the shotgun. The appellant alleges that Mr. Blair immediately grabbed the gun’s barrel and pulled on it, a gesture that the appellant maintains discharged the shotgun accidentally, causing Mr. Blair’s death. After Mr. Blair was shot and as he was lying on the floor, the appellant continued in his efforts to obtain Mr. Blair’s PIN.

Before he lost consciousness, Mr. Blair provided the information. Those were his last words. [ 3 ] What the appellant did and said after the incident was the subject of much discussion at trial and occupied much of the Crown’s case against the appellant on the issue of murderous intent. There is no question that the appellant’s “after-the-fact” conduct had the potential to contribute to the jury’s verdict in this case. However, as will be seen later, as bizarre and incriminating as some of the appellant’s actions and statements might be looked upon, nothing turns on the issue of “after-the-fact conduct”.

Bluntly put, the after the fact conduct cannot alleviate the importance of the errors in the instructions to the jury in this case. [ 4 ] At trial, defence counsel did not argue for a complete acquittal on the basis of “accidental” discharge of the shotgun. His argument before the jury and the argument by counsel on appeal (not counsel at trial) was that the alleged accidental discharge caused by Mr.

Blair grabbing and pulling the barrel of the shotgun was of the utmost importance on the issue of the intent required for a conviction of second degree murder. [ 5 ] In his address to the jury, defence counsel made it clear the only issue was whether the appellant had the intent required to sustain a conviction of second degree murder. It was obvious the appellant was looking for an acquittal on second degree murder and expected a conviction for the included offence of manslaughter.

He recognized that an acquittal was not an option; in fact, nowhere during his address to the jury did defence counsel suggest the appellant was entitled to an acquittal on the included offence of manslaughter. He addressed the jury, in part, as follows: […] there’s no obligation on Mr. McKenna to prove anything. The onus is entirely upon the Crown to prove that the – the accident – that the firing of the firearm was intentional.

Defence counsel ended his address on this note: […] So, the Judge had, I think earlier in her directions to you, said you make the decisions without prejudice and without sympathy and I’m asking that you give a - a fair look at the evidence and – to – to make a determination as to whether Mr. McKenna had the specific intent to commit the offence at the time (inaudible). That’s all I have to say and thank you for your attention. II. The Grounds of Appeal [ 6 ] The Notice of Appeal contains two main grounds: The learned trial judge erred in law:

a) In instructing the jury on the issue of accident; and

b) In instructing the jury on the possibility of a verdict of manslaughter. III. Analysis and Decision A. The instructions on the issue of “accidental” or non-intentional discharge

[7] The appellant argues that the trial judge erred in her instructions dealing with the defence ofaccident. I agree. [8] As I observed earlier, the record clearly indicates that although the appellant alleged that thedischarge of the shotgun was accidental, the defence was being raised for an acquittal on second degree murder and not as a defence forthe included offence of manslaughter.

This is obvious considering the appellant’s position before the jury, which the trial judge correctlyput to the jury: The position of the defence is that the Crown has not proved beyond a reasonable doubt the specific intent to murder Kirk Blair.Evidence given by the accused through his statement to the police was to the effect that the deceased had grabbed at the firearm and thefirearm had discharged.

The discharging of the firearm caused the death of the deceased and the Crown has not established beyond areasonable doubt the necessary degree of intent for a conviction on the charge of second degree murder. […] [9] In this case, the appellant never raised the possibility of an acquittal for the included offence ofmanslaughter in his address to the jury. This was a reasonable position to take, considering the whole of the evidence. There was not aniota of evidence to suggest that the appellant ever abandoned or withdrew from his original plan to attend the premises of Mr.

Blair witha loaded firearm with a view to intimidate or scare him into divulging his PIN. [10] Thus, quite apart from whether the discharge of the shotgun was accidental or not, nothingcould justify the use of a loaded shotgun to scare or intimidate Mr. Blair.

I repeat: there was simply no evidence to support the view thatthe appellant had a lawful excuse to use the shotgun as he did or that he abandoned or withdrew from his original unlawful venture. [11] In my view, there could be no doubt here that the use of a loaded shotgun under thecircumstances of this case was a marked departure from the standard of care expected of a reasonably prudent person (see s. 86(1) of theCriminal Code and R. v. Gosset, (SCC), [1993] 3 S.C.R. 76, [1993] S.C.J.

No. 88 (QL)). [12] Further, for reasons that need no explanation, there was no serious question that the use of theloaded shotgun was a nontrivial contributing cause of Mr. Blair’s death. Thus, in line with the position adopted by the appellant beforethe jury and as correctly enunciated by the trial judge for the jury’s consideration, there was no air of reality in raising the defence ofaccidental discharge to the included offence of manslaughter.

It is undoubtedly for those reasons that experienced defence counseladopted the approach he did in his address to the jury. [13] The jury, however, was clearly informed to the contrary in the following excerpt from the trialjudge’s instructions, verbal and written, while discussing the essential elements of the offence of second degree murder: […] If you are satisfied beyond a reasonable doubt that Harry McKenna caused Kirk Blair’s death, you must go on to the next question.Did Harry McKenna cause Kirk Blair’s death unlawfully? It is not always a crime to cause another person’s death.

It is a crime, however,to cause the death of another person by an unlawful act. The unlawful act alleged in this case is murder. You will recall that I alreadydefined murder for you. […] It is Mr. McKenna’s position that the shooting was an accident. I will refer this – I will refer to this as the defence later in my charge toyou. If you are not satisfied beyond a reasonable doubt that Harry McKenna unlawfully caused the death of Kirk Blair, you must findMr. McKenna not guilty. Your deliberations would be over.

If you are satisfied beyond a reasonable doubt that Harry McKennaunlawfully caused the death of Kirk Blair, you must go on to the next question. Before going to the last element of the offence, [ofsecond degree murder] I will give you my instructions on a defence raised by the accused. Accident. It is Mr. McKenna’s position thatwhat happened to Mr. Blair was an accident. To be more specific, Mr. McKenna claims that Mr. Glare (sic) - Blair grabbed the shotguncausing it to discharge. It is this outside force that the defence claims caused the shooting.

The criminal law punishes people only fortheir conscious voluntary acts. If a person has no voluntary control over what he is doing, because of the outside force as claimed by thedefence in this case, the criminal law does not hold the person responsible for that conduct, whatever its consequences may be. Mr.McKenna does not have to prove that what happened to Mr. Blair happened by accident. Crown counsel must satisfy you beyond areasonable doubt that what happened to Mr. Blair was not an accident.

[…] If you have a reasonable doubt about whether Mr. McKenna abandoned or withdrew from the original common, unlawful venture before the shotgun was discharged by Mr. Blair grabbing it you must find Mr. McKenna not guilty of murder or manslaughter. If you are satisfied beyond a reasonable doubt that Mr. McKenna did not abandon or withdraw from the original unlawful venture or if you determine that Mr. Blair did not grab the shotgun, you must go on to decide what offence Mr. McKenna has committed in accordance with the instructions that I will give you about Mr.

McKenna’s state of mind. [Emphasis added.] [ 14 ] It was of course an egregious error to inform the jury that the “unlawful act” in this case was “murder” but more will be said about this point later. [ 15 ] With respect, quite apart from the fact that it ( i.e. the defence of accident as a defence to the included offence of manslaughter) was unsupported by any evidence, the message conveyed to the jury is completely at odds with the position adopted by the appellant before the jury.

Evidently, counsel for the appellant had tactically decided it would prejudice the appellant’s chance for a manslaughter verdict if the jury thought he was trying for an acquittal. [ 16 ] The error of law identified here was opening a defence of accident to allow the possibility of an acquittal to the included offence of manslaughter in circumstances where there was no evidence to support it, where such a defence was clearly not an option and, perhaps as importantly, was clearly not pursued by the appellant. [ 17 ] In fairness to the trial judge, the appellant did indicate his approval to the jury charge and took no exception to the presence of a “not guilty” verdict to the included offence of manslaughter in the verdict sheet handed to the jury for their use.

In addition, both counsel in this case are senior, experienced and skilled criminal lawyers, but they failed to mention the obvious error by the trial judge when she identified the ‘‘unlawful act” as “murder” as she was explaining the essential elements of murder. [ 18 ] There is no need to spend much time reiterating that in some cases, the failure of counsel to object to the trial judge’s charge to the jury speaks volumes of the lack of seriousness of the error. This is not such a case. To argue that this error was harmless has no traction considering the issues at play.

In any event, the ultimate responsibility to adequately and correctly charge the jury belongs to the trial judge. He or she need not be perfect but on important points of law, the trial judge must be right. [ 19 ] The appellant’s main argument under this heading is that the trial judge failed to adequately and correctly explain to the jury the connection between the defence of accident and the intent required for second degree murder.

The thrust of the argument is that such failure had a direct negative impact on the possibility of a verdict of not guilty of murder, but guilty of the included offence of manslaughter. [ 20 ] To be sure, the trial judge did repeat the boilerplate instruction that the Crown had to prove murderous intent beyond a reasonable doubt and that if it failed to prove that specific intent, then the killing is manslaughter.

However, on this point, the jury was given conflicting instruction as they were told earlier, erroneously in my view, that it was open to them to find the appellant not guilty of murder or manslaughter if they found the defence of accident to apply. [ 21 ] It might be argued that this error in fact favoured the appellant as it opened the door to an acquittal. I do not agree. An acquittal to the included offence of manslaughter was not sought and quite frankly was not an option in the circumstances of this case.

To allow the jury to dwell on such an issue did nothing but allow them to lose focus on the only real issue. McLachlin C.J.C. explains this problem in R. v. Cinous , 2002 SCC 29 , [2002] 2 S.C.R. 3 : The principle that a defence should be put to a jury if and only if there is an evidential foundation for it has long been recognized by the common law.

This venerable rule reflects the practical concern that allowing a defence to go to the jury in the absence of an evidential foundation would invite verdicts not supported by the evidence, serving only to confuse the jury and get in the way of a fair trial and true verdict. […] [para. 50]

[22] Both parties recognize in their briefs that the most important issue in this case was whether thedeath of the victim was the result of the intentional firing of the shotgun or whether it was the result of an accident.

That being said, andto ensure the position of the appellant was adequately and fairly put to the jury, it was imperative the judge’s instructions set forth thisissue with clarity to allow the jury to fulfill its adjudicative mandate properly. [23] As observed earlier, the trial judge stated on several occasions that should the Crown notestablish murderous intent beyond a reasonable doubt, the appellant could be found guilty of manslaughter.

But her instructions on thedefence of accident were erroneous (i.e. the defence was not available for the offence of manslaughter) for reasons already discussed. [24] Perhaps more to the point, the trial judge’s instruction was not directed at the issue of intent tokill, the salient issue in the case.

At the very least, it was incumbent upon the trial judge to mention at some point in unequivocal termsthat the intent required for murder was not an essential element for the offence of manslaughter. [25] It should also have been made clear to the jury that there was evidence before them that whilethe appellant was involved in the unlawful act of careless use of a firearm, the shotgun accidentally discharged and Mr.

Blair was killed.The jury should have been told that in view of this alleged accident, it was the submission of the appellant that he should only be foundguilty of manslaughter. [26] Briefly put, the message which had to be conveyed was that an accident is an unintentional andunexpected occurrence that produces hurt or loss, and the defence of accident in this case related to the absence of intent required for afinding of murder. [27] As submitted by the appellant before us, the failure of the trial judge to properly link theconcept of accident to mens rea in this case constitutes a misdirection which, by itself, calls for a new trial (see R. v.

Sutherland, (SK CA), [1993] S.J. No. 442 (C.A.) (QL)). When the defence of accident is available, it must be linked to the concept ofintent; it is insufficient to deal with the general issue of intent without instructing specifically on how accident operates to negate intent.See also R. v. Roe, 2009 BCCA 193, [2009] B.C.J. No. 873 (QL); R. v. Stevenson, (ON CA), [1990] O.J. No. 1657(C.A.) (QL); R. v. Pawliuk, 2001 BCCA 13, [2001] B.C.J.

No. 57 (QL), where the courts underscore, in some way, the importance oflinking, in specific language, the defence of accidental discharge to the question of intent. [28] In O’Brien v. R., 2003 NBCA 28, 257 N.B.R. (2d) 243, Ryan J.A cited Sutherland andStevenson with approval and reiterated the importance of linking the defence of accident to the question of intent. He found misdirection:(

a) in the trial judge’s failure to tell the jury that if the defence of accident prevailed, that is, that the Crown did not disprove accidentbeyond a reasonable doubt, that the jury could convict the accused of manslaughter; and (

b) in the trial judge’s failure to relate any factsthat would support the included offence of manslaughter (paras. 78-80 and 85). [29] In that vein, I would adopt the following excerpt from Sutherland which, in my view,encapsulates why the trial judge’s instructions on the salient issue of intent constitutes a misdirection: In my opinion he should have specifically instructed the jury that as a matter of law, accident related to the absence of intent.

While thetrial judge stated on a number of occasions that the appellant never intended to kill the victim, it was an accident, he did not at any timeinstruct the jury that as a matter of law the defence of accident negates or relates to the absence of intent.

I am of the opinion that evenwhen read in the context of all the evidence and with his other instructions to the jury, that is that it was necessary for them to determinewhether the appellant intended to cause the death of the victim, the issue of accident as it related to intent was not put fairly to the jury.In my opinion his instructions are inadequate on the issue of accident as it relates to intent and amount to misdirection. [para. 41] B.

Error of law in instructions or lack thereof relating to the included offence of manslaughter [30] Apart from many boilerplate references to the possibility of a verdict of manslaughter if theCrown failed to prove murderous intent, the jury was never told what the term manslaughter meant. As mentioned, this was a relativelysimple case where the major issue, if not the only real issue, was whether the appellant had murderous intent.

Considering the positionadopted by the appellant before the jury and the potential for the defence of accidental discharge to have an impact on the issue of thespecific “intent” required for murder, the trial judge was required to set forth this issue with clarity for the jury’s deliberation. There wasin this case some measure of evidentiary support for the lesser and included offence of manslaughter and the allegations of accidentaldischarge, if accepted by the jury, could have resulted in a verdict of not guilty of second degree murder but guilty of manslaughter.

[ 31 ] In my view, to adequately set out the appellant’s position and the relevant considerations that could underpin a verdict of manslaughter, the trial judge should have instructed the jury along the lines suggested in R. v. Shannon , 2014 BCCA 250 , [2014] B.C.J. No. 1317 (QL) , at para. 18 , per J.E. Hall J.A. , reciting, with approval, part of the charge to the jury in that case.

Much of what has already been said on the necessity of providing a link between the allegation of accidental discharge and mens rea , it will be noted, is included in this charge: The essential elements that the Crown must prove beyond a reasonable doubt in this case for the offence of manslaughter are the same as the elements for second degree murder with one significant exception. The fifth element - that Mr.

Shannon meant to cause the death or meant to cause bodily harm that he knew was likely to cause death and was reckless about whether or not it caused death - is not an essential element that must be proved to establish the offence of manslaughter. There is evidence before you that raises the defence of accident. The accused does not have to prove that this defence applies. The Crown must prove beyond a reasonable doubt that this defence does not apply.

If you are left with a reasonable doubt about whether this defence applies, the Crown has not proved its case beyond a reasonable doubt and therefore you must find Mr. Shannon not guilty of murder. There is evidence in this trial to indicate that while Mr. Shannon was involved in the unlawful act of assaulting Mr. Wilkes with a firearm, an accident occurred - the gun accidentally discharged - and Mr. Wilkes was killed. In view of this alleged accident, counsel for the accused submits that Mr. Shannon should only be found guilty of manslaughter.

For our purposes, an accident is an unintentional and unexpected occurrence that produces hurt or loss. Thus the defence of accident, as a matter of law, relates to the absence of intent required for a finding of murder. On the evidence, you must consider whether the death of Mr. Wilkes was an unexpected and unintentional consequence of Mr. Shannon’s unlawful act. If you find, or you are left with a reasonable doubt, that it was unexpected and unintentional, Mr. Shannon is not guilty of murder. He may be convicted of manslaughter, subject to what I tell you about manslaughter.

On the other hand, if you do not have a reasonable doubt on this issue, then, subject to what I say elsewhere, your verdict should be murder. You may find or have a reasonable doubt that the death of Mr. Wilkes occurred accidentally while Mr. Shannon was committing the unlawful act of assaulting Mr. Wilkes while using a firearm. In these circumstances, you may return a verdict of manslaughter if you decide or have a reasonable doubt that the unlawful act was such that any reasonable person in the position of the accused would realize it would subject Mr.

Wilkes to the risk of at least some harm, although not necessarily severe harm. [paras. 173-178] [ 32 ] There are excerpts of this charge to the jury that found their way into the charge in our case, such as the second paragraph. However, missing, are the most salient elements.

As to the last paragraph, it should be noted, for the purposes of our case, Gosset (supra) directs that when the unlawful act relied upon is careless use of a firearm, contrary to s. 86(1) , the jury must be instructed that the Crown must prove the accused’s conduct constitutes a marked departure from the standard of care expected of a reasonably prudent person in the circumstances (see Justice David Watt, Ontario Specimen Jury Instructions (Criminal) (Toronto: Thomson Carswell, 2005) at p. 498, note 5). [ 33 ] These excerpts from the trial judge’s instructions in Shannon were met with approval by the Court of Appeal with the following words: The charge of the judge set forth this issue with clarity for decision by the jury.

I do not consider that the jury could have been left with any possible misapprehension as to the relevant legal and evidentiary considerations that should guide their deliberations. [para. 19] [ 34 ] I am unable to say that the jury in the case at hand was left without “any possible misapprehension as to the relevant legal and evidentiary considerations” that should have guided their deliberations.

In my view, these omissions constitute errors of law that, by themselves, call for a new trial. [ 35 ] I also share the view expressed by the appellant in counsel’s brief on appeal to the effect that “the errors were compounded when the trial judge incorrectly instructed the jury” that “[i]t is a crime to cause the death of another person by an unlawful act. The unlawful act alleged in this case is murder”. Of course, as pointed out by the appellant, the commission of an unlawful act is an essential element of murder, but the “unlawful act” cannot of itself be “murder”. The unlawful act in this case

was the use of a loaded shotgun for the purposes and in the circumstances recited earlier. [ 36 ] The Crown, as it should, recognizes the error but suggests that “it is not an error impacting the verdict”. [ 37 ] I take the liberty of reproducing verbatim the argument of the respondent on point: The error was arguably to the advantage of the appellant as it directs the jury to engage somewhat in circular reasoning that leads away from a finding of murder.

The trial judge stated that to find second degree murder [one] must find that the appellant caused the death of Blair; that he did so by the unlawful act of “murder”; and that he had the specific intent to bring about the death of Blair. If anything this would be a Crown argument on a manslaughter verdict that the trial judge did not specifically indicate that the unlawful act was discharging a loaded firearm at the victim. [ 38 ] To be honest, I am not particularly impressed with the argument advanced by the Crown.

To argue an advantage to the appellant on the basis that this egregious error engages the jury in circular reasoning is, in my view, without merit and somewhat surprising. It should not have been made. C.

The curative proviso [ 39 ] The Crown argued the errors in this case were harmless in that they affected only a minor aspect of the case, and that the curative provision in s. 686(1)(b)(iii) of the Criminal Code should apply, a position that was strongly opposed by the appellant. [ 40 ] I disagree with the proposition that it would be appropriate to apply the “curative proviso” to sustain the conviction in this case. The identified errors are not harmless as described by the Supreme Court in R. v. Khan , 2001 SCC 86 , [2001] 3 S.C.R. 823 , at para. 29 .

I am far from convinced that the verdict would necessarily have been the same regardless of the errors. I cannot say that the evidence pointing to the guilt of the appellant on the charge of second degree murder is so overwhelming that “any other verdict but a conviction [for second degree murder] would be impossible” ( Khan , at para. 31 ). [ 41 ] In my respectful view, the shortcomings in the trial judge’s instructions demand appellate intervention.

In general terms the errors were in relation to the link between the allegations of accidental discharge of the shotgun and mens rea , and the confusion that would result in having the jury deliberate on the possibility of a complete acquittal when the evidence would simply not allow it and it was not pursued by the appellant, coupled with the egregious error with respect to what constituted an “unlawful act” in this case. [ 42 ] My decision not to apply the curative proviso is further reinforced by the comments of the Supreme Court in R. v.

Trochym , 2007 SCC 6 , [2007] 1 S.C.R. 239 , per Deschamps J., at para. 82, that the burden on the Crown seeking to invoke the curative proviso “is a substantially higher one than the requirement that the Crown prove its case ‘beyond a reasonable doubt’ at trial”. IV. Disposition [ 43 ] For the above reasons I would set aside the conviction and order a new trial. ____________________________________

ALEXANDRE DESCHÊNES, J.A. I CONCUR: ____________________________________ B. RICHARD BELL, J.A. The dissenting reasons of QUIGG, J.A. [ 44 ] I have had the opportunity to read the reasons of my colleagues. I respectfully disagree with the majority’s conclusion that the trial judge erred in the instruction provided concerning the defence of accident and that the judge failed to properly link the concept of accident to mens rea . In addition, I do not agree with the majority’s determination that the judge erred in law in the instructions provided respecting manslaughter.

For the reasons that follow, I am not persuaded the trial judge erred and, as a result, would have dismissed the appeal. [ 45 ] In order to explain my position, it is necessary to provide some factual background before providing my analysis. I. Background A. Events Leading to Mr. McKenna’s Conviction [ 46 ] In the early hours of May 1, 2013, Kirk Blair and his wife, Joanna Blair, were together in their living room watching television when there was a knock at the door of their home. Although Mrs. Blair commented it was late for someone to be at the door, Mr.

Blair went to the entrance, turned on the outside light and opened the only door to the residence. According to Mrs. Blair, she heard a “bang” and then saw her husband on the floor in the kitchen. Mr. McKenna was holding a shotgun. According to Mr. McKenna , he, along with D.J. Doucette, had gone to the Blair home with a loaded gun, and on seeing Mr. McKenna at the door, Mr. Blair grabbed the gun which discharged accidentally. According to Mrs. Blair, as her husband lay on their kitchen floor dying, Mr. McKenna and Mr. Doucette demanded Mr. Blair tell them his PIN for his bank account. Mr. McKenna asked Mrs.

Blair for the PIN but she did not know it. Mr. McKenna told Mrs. Blair to ask her husband for the PIN and she was given an envelope upon which she was ordered to write it down. Mr. Blair appeared to respond to his wife’s voice and “gasped” out the PIN. Mrs. Blair wrote the PIN on the envelope and passed it to Messrs. McKenna and Doucette. [ 47 ] Mrs. Blair testified that Mr. Doucette attempted to have Mr. McKenna leave the house, at which time she picked up a small frying pan and hit Mr. McKenna over the head, also endeavoring to get him to leave. Both men exited the residence and Mrs. Blair locked the door.

She called 911, and then heard two “smashes” and another “bang”. Mr. McKenna had discharged the gun a second time through the window in order to unlock the door. Mrs. Blair dropped the telephone receiver before speaking to anyone. Mr. McKenna re-entered the residence alone, still holding the gun, and told Mrs. Blair she had to go with him to his residence next door. Mrs. Blair was so frightened her bowels evacuated. During the trial she testified “I thought I was gonna be next”. Mrs. Blair went to the washroom to clean up, and then went to the bedroom to put on fresh undergarments and her pajamas back on. Mr.

McKenna was with her

throughout this period, holding the gun. According to Mrs. Blair, when Mr. McKenna returned to her residence he said “I should go back and put a bullet in the back of Kirk’s head”. Mr. McKenna took Mrs. Blair to his residence, sat her on a chair and sat on a couch opposite her, still holding the gun. [ 48 ] When a police vehicle entered the driveway, Mr. McKenna placed the gun under the couch cushions and went to look out the window. Mrs. Blair ran out of the home toward Cst. Tara Tremblay, the RCMP officer who had arrived. Mrs.

Blair told the officer “he shot my husband” and hid behind the police vehicle. [ 49 ] Cst. Tremblay observed Mr. McKenna looking out the window of his residence and approached the door to speak to him. Cst. Tremblay entered the residence and asked Mr. McKenna what had happened. He responded by saying “not much”. He answered when asked his name. Cst. Tremblay testified: It was a, a difficult conversation. At that point there was some conversation on the, on the police radio, given the conversation that was taking place, myself with Mr.

McKenna, and the dogs in the area, I brought him back to the conversation when which I asked him “What was your breaking point?”, you know “Getting back to what you said about your breaking point.” Mr. McKenna, at that point, asked me if he wanted to — me to show him what his breaking point was. And I said “Yes, show me what your breaking point was.”, and Mr. McKenna, at this point, had a can of beer in his hand and basically pointed, nodded, towards the door that I was in, basically to go outside.

We went outside onto the steps and we went down and I looked and I could tell that the female was still up by my car, as we get down the stairs, and we walk over to the long trailer, the other, the other trailer and that’s when Mr. McKenna pointed and said “There”. As I look at the trailer there is a glass door and it’s shattered and there’s glass all over the, all over the ground. And I looked at the door and said to Mr. McKenna, and I said “Bang, bang.”, and he said “Yes.” I said, okay — at that point I placed Mr.

McKenna under arrest for assault with a weapon, at that time, given what I had, reasonable and probable grounds to believe that an offence had committed — been committed. And I — he asked me if he could have — drink his beer and I initially had said no to him and he asked me if — or pardon me, stated to me that — said “Come on this is going to be my last beer for a long time.” I told him that he could drink and I allowed him to drink his beer. He raised the, the beer to his lips and I said “Drink three times.” He took three drinks of beer and I took his beer can from him and I set it on the steps.

You’re directly in front of that trailer there’s a porch. You’re right in — porch — pardon me, a step and we were standing right at the step, staring at the door, it was very close proximity, and I set the can of beer down on the stairs. This point the female and Mr. McKenna — the female was yelling something, I did not hear what the female was yelling, Mr. McKenna at this point said “Yea, well, he was an asshole”, referring to, I’m assuming, the female’s husband. Mr.

McKenna places his hands in front so I could handcuff him and I had told him that I wanted his handcuffs in the back, so he put his hands behind his back and at that time I offered Mr. McKenna the active offer, that we offer our individuals that we deal with, and that would be offering and, and — them the preference of being served in French or English, in which I would have said to him You have the right to be served in French or English. Vous avez le droit d’être servi en français ou anglais. What is your choice? Quel est votre choix? And on two occasions Mr.

McKenna told me that he wanted to be served in English. [Trial Transcript, October 28, 2013, pp. 62-64] [ 50 ] On cross-examination, Cst. Tremblay further testified about her initial encounter with Mr. McKenna: Q . Alright. Now, would you agree with me that you — when you, when you asked Mr. McKenna, initially, he basically said that — when you asked what was going on, he, he spoke to you about the parties being in the relationship. Did he — he, he subsequently, did he not spoke (sic) about the business that, that they were doing and the fact that they worked together? A . He — no, he did not.

No, he said he did a job and he did not get paid for it. He did not say anything about a business relationship. Q . Well, you didn’t imply, I guess, that, that it was with Mr. — you didn’t make any implication that it might have been with the neighbor? A . No. Q . Okay. So, he just told you that on that particular night that he had had a job that he wasn’t paid for, and he was upset about it

right? A . Correct. Q . Now, did he tell you anything else about the incident that occurred inside the house, what had taken place? A . Not to my recollection. Q . No. He didn’t, he didn’t tell you anything about who went inside the house, who was there, who the people were involved, or anything? A . No, other than the three of them, that it was the three of them. [Trial transcript, October 23, 2013, pp. 102-103] [ 51 ] Cst. Tremblay observed that Mr. McKenna was “functionally intoxicated” but polite during this encounter and his subsequent arrest. Though she initially arrested him for assault with a weapon, Cst.

Tremblay arrested Mr. McKenna for murder following the arrival at the scene of the paramedics and other officers, and re-cautioned and re-Chartered him for that charge. At trial, the jury heard evidence from four expert witnesses including a forensic pathologist, an expert in the operation and identification of firearms, an expert in DNA typing and procedures, and a forensic identification specialist. Mr. McKenna did not testify, though there was evidence given by persons who had seen Mr. McKenna on the day in question, Mrs. Blair, and various police officers.

Following the trial’s conclusion, the jury determined Mr. McKenna was guilty of second degree murder. B . Statement [ 52 ] In Mr. McKenna’s statement to police he said he had the gun in his hands and that he shot the gun. He said “I think it was more intimidation than threat”, and he meant only to scare Mr. Blair. Crown counsel asked the jury to consider, if Mr. McKenna was attempting to intimidate Mr. Blair, why did he load the gun? Why manually cock the gun? [ 53 ] Furthermore, Crown Counsel asked the jury to consider that Mr.

McKenna said “there is a dead man and I done it or we done it or we done it however you want to put it”. During the police interview, Mr. McKenna also said “It is what is. Do I give a fuck whether he laid there and died? Nope. Would I do it again? In a fucking heartbeat”, “you burned me once, you burned me twice, you burned me three times and you are fucked”, and that Mr. Blair was a “piece of shit”. C. Crown Position [ 54 ] At trial, the Crown argued Mr. McKenna had the requisite intent for second degree murder and the shooting “was no accident”. The Crown submitted that Mr.

McKenna took a loaded firearm to a residence where he knew there was an individual who he felt owed him money. Mr. McKenna was very angry about this, or “pissed”, to use his own word. Mrs. Blair testified as to hearing a bang when Mr. Blair answered the door and then Mr. Blair was on the floor. The first police officer to arrive at the scene asked Mr. McKenna what had occurred, and he mentioned reaching a breaking point. When asked what that was he responded “[t]here”, indicating toward the Blair residence. When the police officer said “bang bang”, Mr.

McKenna answered “yes”, and shortly after being arrested stated “yeah, well he was an asshole”. Crown Counsel told the jury Mr. McKenna’s claim in his statement that Mr. Blair pulled on the gun and it discharged does not make any common sense. Mr. McKenna returning to the Blair residence after having left and holding Mrs. Blair against her will, all the while carrying a loaded shotgun, suggests this shooting was not an accident. [ 55 ] Crown Counsel advised the jury that the Crown had the burden of proving both that Mr. McKenna caused the death of Mr.

Blair, which was an unlawful act, and had the state of mind to commit murder. He went to Mr. Blair’s house with a loaded shotgun, which is an unlawful act. As to state of mind, Crown counsel said the Crown had to prove that Mr. McKenna meant to either kill Mr. Blair, or to cause Mr. Blair bodily harm Mr. McKenna knew was likely to kill Mr. Blair, and Mr. McKenna was reckless in causing such harm with respect to whether or not Mr. Blair died. Crown counsel gave an overview of the forensic evidence, highlighting the following:

1) According to the forensic reports Mr. Blair did not have any physical contact with the gun, and there was no DNA on the gun fromMr. Blair; 2) A gun expert testified that the gun had to be manually cocked in order to be shot; 3) The gun had been loaded three times, the first time with a slug (which killed Mr. Blair), the second time with bird shot (used toshoot out the window in the kitchen door in order to obtain access to the Blair home after the shooting), and the third time with shotwhich was discovered when the gun was retrieved from under the cushions of the couch in Mr.

McKenna’s home; 4) Forensic pathologist, Dr. Obenson, testified there was no soot in Mr. Blair’s wound or on his tee-shirt and the wound was slightlyupward; 5) The gun expert testified that the distance between Mr. Blair and the muzzle of the gun at the time of firing had to be greater thanthree feet and less than seven feet. The Crown submitted that all of the evidence would lead the jury to conclude the shooting was not accidental. D. Defence Position [56] Evidence led by the defence at trial suggested Mr. Blair was shot accidentally and that Mr. McKenna had nointention of killing Mr. Blair.

In statements to police, Mr. McKenna said the incident occurred as a result of a dispute concerning moneyand he merely intended to scare Mr. Blair. When Mr. Blair responded to Mr. McKenna’s knock at the door, Mr. Blair grabbed the barrelof the gun like he was going to “push it away”. Mr. Blair was thus shot accidentally. II. Analysis A. Accident / Post-Offence Conduct [57] Mr. McKenna contends the charge to the jury relating to accident and post-offence conduct was inadequate andconstitutes reversible error. He says R. v.

White, 2011 SCC 13, [2011] 1 S.C.R. 433, makes it clear that post-offence conduct must betreated with great caution to avoid the risk juries might “jump too quickly from evidence of post-offence conduct to an inference ofguilt”: That being said, though the use of such evidence has an extensive history in our criminal jurisprudence, it has also long been recognizedthat the introduction of post-offence conduct for the purpose of establishing the accused's "consciousness of guilt" carries with it asubstantial risk of jury error (Gudmondson v. The King (1933), (SCC), 60 C.C.C. 332 (S.C.C.)).

Jurors may be temptedto "jump too quickly from evidence of post-offence conduct to an inference of guilt" (White (1998), at para. 57) without giving properconsideration to alternate explanations for the conduct in question. [para. 23] [58] Mr. McKenna submits this case is such an instance. He admits he carried a loaded firearm to Mr. Blair’s homein an attempt to scare Mr. Blair. However, Mr. McKenna contends his actions and comments made subsequent to his realization Mr.Blair had died, were as consistent with accident as they were with intent to kill Mr.

Blair, and as consistent with second degree murder asthe included offence of manslaughter. Mr. McKenna submits his acknowledgement of ill will toward Mr. Blair, his lack of regret andinappropriate remarks respecting Mr. Blair did not mean he intended to kill Mr. Blair. Mr. McKenna again refers to R. v. White: Still, judicial experience has shown that certain evidence that ought to be left with the jury, based on the ordinary rules of evidence,carries with it a heightened risk of misinterpretation or misuse.

Certain types of evidence may appear more probative than they really are,may be systematically less reliable than they seem, or may be consistent with other less obvious explanations than the one advanced by aparty (though not equally so). These potential dangers may not be immediately apparent to lay juries (see R. v. Khela, 2009 SCC 4,

[2009] 1 S.C.R. 104 , at para. 4 ). Accordingly, courts have recognized that when leaving certain types of evidence with the jury, the trial judge should provide a caution that alerts the jury to the risks involved. The content and nature of the warning should address the risk and depend upon the severity of the danger. [para. 55] [ 59 ] Mr. McKenna says it was not made clear to the jury that his actions and comments were not necessarily a reliable indicator of his intention at the moment of the shooting.

He contends the requisite link to mens rea was not made in the trial judge’s reference to post-offence conduct. [ 60 ] I do not agree. The judge had this to say about post-offence conduct: Post-offence conduct. You have heard evidence that, after the offence charged took place, Mr. McKenna came back into the residence of Mr. Blair and he still had the shotgun. He shot the window and entered the residence and he insisted that Mrs. Blair accompany him to the McKenna home. They sat in the living room on separate sofas and Mr. McKenna still had the shotgun in his hands until the police arrived, when he hid it.

You also heard that he was co-operative with Cst. Tremblay and she indicated he was polite and did not resist her in any way. What a person says or does after a crime was committed, may help you decide whether that – whether it was that person who committed it. It may help, it may not. The words or conduct may indicate that Mr. McKenna committed the crime. On the other hand, the words or conduct may be of those of an innocent person who simply wants to avoid involvement in a police investigation or embarrassment for himself. The first thing to decide is whether Mr. McKenna actually did or said these things.

If you find that he did not do or say these things, you must not consider this evidence in reaching your verdict. If you find that Mr. McKenna did in fact do or say these things, you should consider next whether this was because Mr. McKenna committed the offence or for some other reason. If you find that what Mr. McKenna said or did afterwards is consistent with him being conscious of having done what is – what is alleged against him, and not for some other reason, you may consider this evidence, together with all the other evidence, in reaching your verdict. If you do not or cannot find that Mr.

McKenna said or did those things for that reason, you must not consider this evidence in any way. [Trial transcript, November 4, 2013, pp. 89-90] [Emphasis added.] [ 61 ] In White , the Supreme Court directs: The category of "post-offence conduct" evidence is much broader as it refers to anything done by the accused after the commission of the offence. The shift in nomenclature may therefore have led some trial judges to believe that any evidence of the accused's actions after the offence must be subject to special warnings and limiting instructions (see C.A. reasons, at para. 129, per Ryan J.A.).

This is not the case. The principle that after-the-fact conduct may constitute circumstantial evidence of guilt remains good law. At its heart, the question of whether such evidence is admissible is simply a matter of relevance ( White (1998), at para. 23). As Major J. noted in White (1998) , " [e]vidence of post-offence conduct is not fundamentally different from other kinds of circumstantial evidence. In some cases it may be highly incriminating, while in others it might play only a minor corroborative role" (para. 21).

As with all other evidence, the relevance and probative value of post-offence conduct must be assessed on a case-by-case basis (para. 26). Consequently, the formulation of limiting instructions with respect to the broad category of post-offence conduct is governed by the same principles as for all other circumstantial evidence.

Thus, while the term "consciousness of guilt" may have fallen out of use, it is still permissible for the prosecution to introduce evidence of after-the-fact conduct in support of an inference that the accused had behaved as a person who is guilty of the offence alleged – provided that, as with all circumstantial evidence, its relevance to that inference can be demonstrated. [paras. 21-22] [ 62 ] Post-offence conduct must be assessed on a case by case basis. In this case, the post-offence conduct was relevant to the live issue of whether Mr. McKenna was behaving in a way consistent with his defence of accident.

In White , the Court delineates: Thus, Arcangioli and White (1998) should be understood as a restatement, tailored to specific circumstances, of the established rule that circumstantial evidence must be relevant to the fact in issue. In any given case, that determination remains a fact-driven exercise. Whether or not a given instance of post-offence conduct has probative value with respect to the accused's level of culpability depends entirely on the specific nature of the conduct, its relationship to the record as a whole, and the issues raised at trial.

There will undoubtedly be cases where, as a matter of logic and human experience, certain aspects of the accused's post-offence conduct support an

inference regarding his level of culpability. [para. 42] [63] Post-offence conduct may be relevant to determining intent. Contrary to Mr. McKenna’s view, an instruction tothe jury that post-offence conduct evidence lacks probative value would be incorrect. As stated in White: On the other hand, logic and human experience suggest that people are more likely to show some outward sign, such as hesitation, beforecontinuing on with their actions, when they do something accidentally than when they do it on purpose.

This is all the more so when theaccident involves a sharp physical effect on the person (the discharge of a gun in one's hand) and results in a terrible consequence, suchas having killed another person. As I have discussed, lack of hesitation prior to flight, is less consistent with shooting and killingsomeone accidentally than it is with doing so intentionally.

Thus, in the context of determining relevance, evidence of flight per se isdifferent from evidence of lack of hesitation prior to flight. […] It is true that the Crown's use of evidence of lack of hesitation prior to flight presupposes a normal range of reactions: it assumes thatmost people will hesitate or show some other outward sign of surprise when something dramatic and horrible accidentally happens. Ofcourse, it may be that not everyone will respond in this way. However, I consider this view of a normal almost reflexive or involuntaryresponse to be well founded.

I have no doubt that had there been evidence of hesitation, defence counsel would have submitted it asprobative of an accident. Divergence from this norm, though not determinative, is more consistent with an intentional shooting than withan accident. It would therefore have been wrong for the trial judge to instruct the jury that this evidence had no probative value indetermining intent, as Mr. White suggests he should have. It was not irrelevant. [paras. 70 and 79] [64] In this case, (as in White), the post-offence conduct was relevant to a specific issue: was Mr. Blair’s death theresult of an accident?

In White, the issue was whether the lack of hesitation before fleeing the scene was relevant to the question ofaccident versus intentional action. We are faced with the same question in this case. Were Mr. McKenna’s actions which included: 1) hisattempts to obtain a PIN from the victim as he lay dying; 2) his intentional shooting of the door window to regain access to the Blairresidence and taking Mrs. Blair against her will to his residence all the while holding the gun, thereby preventing her from completingher 911 call; and 3) his comments respecting putting a bullet in the back of Mr.

Blair’s head, relevant to the jury’s determination ofwhether the shooting was an accident or an intentional act? It could be said the judge’s discussion of post-offence conduct in the chargeto the jury was more favourable to Mr. McKenna than the Crown. The judge did not link Mr. McKenna’s actions to the question ofaccident as opposed to intentional action: If you find what Mr.

McKenna said or did afterwards is consistent with him being conscious of having done what is-what is allegedagainst him, and not for some other reason, you may consider this evidence, together with all the other evidence, in reaching yourverdict. If you do not or cannot find that Mr. McKenna said, or did those things for that reason, you must not consider this evidence inany way. [Emphasis added.] [65] The judge was within the proper parameters of a charge on post-offence conduct in stating the above. It wasequivalent to instructing the jury to determine whether the actions were consistent with Mr.

McKenna “having the intent” to do what wasalleged against him. The post-offence conduct in this case was not evidence which required

interpretation by a witness or a victim, norwas it inconclusive evidence such as someone fleeing after an unlawful act was committed. The post-offence conduct in this case was“objective physical evidence”. In White, the Supreme Court instructs: Second, I do not agree that this case raises the sorts of concerns typically associated with demeanour evidence. This case simply does notengage concerns about evidence of facial expressions or failing to attend funerals leading to wrongful convictions. The Crown did notinvite the jury to rely on Mr.

White's appearance in relation to shock or surprise, but on the fact that he did not hesitate before fleeing. AsI elaborate below, the objective physical evidence that Mr. White failed to hesitate immediately after shooting Mr. Matasi has nothing todo with the serious problems identified by the Kaufman Inquiry into the Morin conviction or the Nelles case (R. v. Nelles (1982), (ON CJ), 16 C.C.C. (3d) 97 (Ont. Prov. Ct. (Crim.

Div.))). [para. 46] [66] In White, the Supreme Court makes the point that post-offence conduct is evidence like any other, and if thereis risk of jury misinterpretation, a caution by the trial judge is sufficient to alert the jury to the risk: Once evidence is found to be relevant, it is generally admissible and the jury is left to decide how much weight to give a particular item

of evidence. Similarly, once evidence is determined to be relevant with respect to a particular live issue, the jury should normally be freeto weigh the evidence in drawing conclusions about that live issue. This is subject to specific exclusionary rules and the judge'sdiscretion to exclude evidence that is more prejudicial than probative. […] A warning or caution does not serve to remove the evidence from the jury's consideration.

Instead, providing a caution allows for juriesto benefit from judicial experience concerning the risks associated with certain types of evidence, while respecting the jury's competencein fulfilling its fact-finding role. The point is that once jurors are alerted to the risks that are not necessarily apparent to the averagecitizen, they can be trusted to properly weigh the evidence. Our jury system is predicated on the conviction that jurors are intelligent andreasonable fact-finders.

It is contrary to this fundamental premise to assume that properly instructed jurors will weigh the evidenceunreasonably or draw irrational and speculative conclusions from relevant evidence. I agree with the view expressed by Dickson C.J., inR. v. Corbett, (SCC), [1988] 1 S.C.R. 670, that "it would be quite wrong to make too much of the risk that the jury mightuse the evidence for an improper purpose. This line of thinking could seriously undermine the entire jury system.

The very strength ofthe jury is that the ultimate issue of guilt or innocence is determined by a group of ordinary citizens who are not legal specialists and whobring to the legal process a healthy measure of common sense" (p. 692 (emphasis in original)). [paras. 54 and 56] This statement reflects the trust we must have in our jury system. In this case, the judge did not exclude post-offence conduct, possiblybecause it was relevant to the live issue of whether Mr. McKenna was behaving in a manner consistent with his explanation of accident.Regardless, the judge did not err. B.

Linking accident to mens rea [67] Mr. McKenna submits the jury was not properly charged with respect to linking accident to the requisite mensrea. He argues the jurisprudence is clear that the concept of accident must be clearly “linked” to mens rea for the jury in instances whereaccident is advanced as a defence. Disproof of accident does not mean that mens rea for second degree murder has been illustrated.According to Mr. McKenna, the charge to the jury left that impression.

He purports it “was not explained in clear terms that the Crownhad to do more than disprove accident in order to support a conviction for second degree murder”. The Crown was required to establishspecific intent mens rea on the whole of the evidence that could “realistically bear on the accused’s mental state at the time of thealleged offence”. Even if specific intent had been demonstrated beyond a reasonable doubt to exist up to the moment of shooting,establishing accident could negate that finding and allow consideration of a manslaughter verdict (see O’Brien v.

R., 2003 NBCA 28, 257N.B.R. (2d) 243). [68] The Crown submits the judge adequately charged the jury with respect to accident. The judge’s chargeregarding accident must be considered in the “arguable context” that there was no air of reality to the claim of accident in this case. TheCrown says the sole evidence respecting accident was provided by Mr. McKenna through his assertions made in statements to the policeand the “tenuous link” made by defence counsel referencing the examination of the forensic firearms expert, Mr. Terry Pipes. Accordingto the Crown, Mr.

McKenna’s counsel interpreted the cross-examination of the firearms expert as him conceding “to the fact that itcould have been …less than that” (referencing the opinion that the gun was probably discharged within three to seven feet of the victim).The record provides the actual exchange between Mr. McKenna’s counsel and the firearms expert: A. Compared to the tests that I conducted with the shotgun and similar ammunition, the characteristics that I found on the shirtwould fall into the range greater than three feet, less than seven feet and without an intermediate target being present. Q.

But you use the word probably in this report. A. Yes. Q. Okay. A. Yes.

Q. So probably does not mean that that’s a definitive indefinite range that it could be greater or it could be less. A. It could be yes but based on what I observed on this shirt compared to the tests that I took that those characteristics that I observed on the shirt fell within those parameters. Q. But there’s – there’s a whole lot of factors in performing those particular tests like the type of ammunition that you are using and you used am-ammunition that was consistent with the shells, correct? A. Yes. Q. But you used it out of Federal store that you have there – A. Yes.

Q. – as opposed to – as opposed to using location ammunition – A. That’s right. Yeah. Q. – purchased there? A. That’s why we use parameters. Because there is variation within amu-ammunition and- Q. I realize you used the same shells but what I’m saying is that you can’t definitively say it was three and seven. You can only say it was probably. A. Right, it’s not – it’s not a definitive distance. MR. COREY: All right.

I have no further cross-examination. [Trial transcript, October 31, 2013, pp. 35-37] [ 69 ] In the charge to the jury the trial judge gave the following instruction respecting the defence of accident: Before going to the last element of the offence, I will give you my instructions on a defence raised by the accused. Accident. It is Mr. McKenna’s position that what happened to Mr. Blair was an accident. To be more specific, Mr. McKenna claims that Mr. Glare (sic) – Blair grabbed the shotgun causing it to discharge. It is this outside force that the defence claims caused the shooting.

The criminal law punishes people only for their conscious voluntary acts. If a person has no voluntary control over what he is doing, because of the outside force as claimed by the defence in this case, the criminal law does not hold the person responsible for that conduct, whatever its consequences may be. Mr. McKenna does not have to prove that what happened to Mr. Blair happened by accident. Crown counsel must satisfy you beyond a reasonable doubt that what happened to Mr.

Blair was not an accident. [Trial transcript, November 4, 2013, pp. 95- 96] [ 70 ] In my view, the judge provided a clear explanation of the defence of accident. This explanation, when read in the context of the totality of the charge to the jury (which also described the elements which must be proven by the Crown to establish second degree murder), reveals no basis for appellate intervention. C. Definition of Manslaughter

[71] Mr. McKenna claims the judge erred in law by not properly defining manslaughter. He says that although thejury “heard references” to something called “manslaughter”, it never received an explanation of what the term meant, resulting in thejury having been “inadequately and incorrectly charged as to the availability of such a verdict”. Mr. McKenna says the definition ofmurder (s.229 of the Criminal Code) was set out for the jury.

He argues the judge, in her opening and closing remarks, stated there weretwo possible verdicts, guilty or not guilty, when there were in fact three (guilty of second degree murder, not guilty, or guilty ofmanslaughter). Mr. McKenna contends the jury was not told that culpable homicide is murder, manslaughter or infanticide (s. 222 of theCriminal Code), nor was the jury told that culpable homicide that is not murder or infanticide, is manslaughter (s.234 of the CriminalCode). Mr.

McKenna also says the judge compounded the error when she instructed the jury that “[i]t is a crime to cause the death ofanother person by an unlawful act. The unlawful act alleged in this case is murder” (Trial transcript, November 4, 2013, p. 94). He saysthis statement is incorrect in fact and in law and the Crown had argued the unlawful act was either taking the loaded gun to Mr. Blair’sproperty or the actual shooting. While the commission of an unlawful act can constitute murder, the unlawful act itself cannot be murder.Mr.

McKenna submits by stating this to the jury, the judge effectively directed a murder verdict and had the statement not been made, hemay not have been convicted of murder. [72] Contrary to Mr. McKenna’s assertions that specific terms were not used in the charge with respect tomanslaughter and mens rea, it is established law that the charge to the jury is to be assessed in its totality and should not be parsed forparticular words which may or may not have been used. When reviewing these particular grounds, we must keep in mind this Court’srole in assessing a charge to a jury. In R. v.

Jacquard, (SCC), [1997] 1 S.C.R. 314, [1997] S.C.J. No. 21 (QL), theSupreme Court addresses the foundation for an analysis of a jury charge: Having read and reread the charge, I have no doubt that the jury was properly instructed on the meaning, scope, and effect of "plannedand deliberate". Moreover, I cannot emphasize enough that the right of an accused to a properly instructed jury does not equate with theright to a perfectly instructed jury. An accused is entitled to a jury that understands how the evidence relates to the legal issues.

Thisdemands a functional approach to the instructions that were given, not an idealized approach to those instructions that might have beengiven. Using such a functional approach, I find added support for the conclusion that the jurors were properly instructed in this case […][para.32] [Emphasis added] [73] In Bonnell v. R, 2015 NBCA 6, this Court instructs: The question we must consider is, after reviewing the whole charge, whether Mr. Bonnell had a fair trial. We are not to scrutinize everyword contained in the charge looking for insignificant error.

The purpose of the exercise, according to Jacquard, is to establish that juriesare properly, not perfectly, instructed. [para. 81] [74] In O’Brien v. R., Drapeau C.J.N.B. sets out a guide for appellate review of charges to juries: It is axiomatic that a charge to the jury must be considered in its totality, as well as contextually, to determine whether there is merit toany challenge to its correctness or adequacy. Appellate review is driven by case-specific considerations of substance, not form. AsArbour J. states in R. v.

Rhee, 2001 SCC 71 , [2001] 3 S.C.R. 364, at para. 21, "[a]ppellate review of a charge to the jury is not amechanical task." The reviewing court should apply a functional approach and dismiss any challenge to the judge's charge if it features instructions thatenabled the jurors to understand the case before them and to fulfill their adjudicative mandate. Needless to say, flawlessness in a chargeto the jury is neither expected, nor required. On that score, I can do no better than repeat Chief Justice Lamer's oft-quoted remarks in R.v. Jacquard, (SCC), [1997] 1 S.C.R. 314, at paras. 1-2: ...

It is undoubtedly important that jurors try the right facts according to the appropriate legal principles in each case. However, we mustensure that the yardstick by which we measure the fitness of a trial judge's directions to the jury does not become overly onerous. Wemust strive to avoid the proliferation of very lengthy charges in which judges often quote large extracts from appellate decisions simplyto safeguard verdicts from appeal. Neither the Crown nor the accused benefits from a confused jury. Indeed justice suffers. These comments are not meant to suggest that we sanction misdirected verdicts.

This Court has stated on repeated occasions that accusedindividuals are entitled to properly instructed juries. There is, however, no requirement for perfectly instructed juries. As I specificallyindicated at the hearing of this case, a standard of perfection would render very few judges in Canada, including myself, capable ofcharging juries to the satisfaction of such a standard. [paras. 25-26]

(Emphasis in original.) [75] Generally, the framework upon which an adequate charge to the jury is made is set out in Bonnell v. R.: a. The function of instructions to the jury is to “explain the relevant law and so relate it to the evidence that the jury may appreciatethe issues or questions they must pass upon in order to render a verdict of guilty or not guilty” (R. v. MacKay, 2005 SCC 75, [2005] 3S.C.R. 607, at para. 1); b. The trial judge must review the substantial parts of the evidence and give the jury the theory of the defence (Azoulay v. The Queen, (SCC), [1952] 2 S.C.R. 495, at pp. 497-98); c.

The role of a trial judge in charging the jury is to decant and simplify and the goal of the charge is to help the jurors focus on theirjob and to provide an adequate understanding of the relationship of the evidence to the essential elements and the issues they are requiredto resolve (R. v. Jacquard, at paras. 13-14); d. A trial judge must necessarily be vested with considerable latitude to determine how much or how little of the evidence is to bereviewed in relation to the elements of the charge (R. v. Royz, 2009 SCC 13, [2009] 1 S.C.R. 423, at para. 3); e.

Lack of objection by counsel for the accused is not fatal, but it may be informative (R. v. Royz, at para. 3); f. Trial counsel are well situated to assess whether the judge has given the jury an adequate review of the evidence for the purpose ofthe defence theory being pursued (R. v. Royz, at para. 3); g. In many cases, a trial judge need only review relevant evidence once and has no duty to review the evidence in a case in relation toevery essential issue (R. v. Jacquard, at para. 14); h. In the end, the test is one of fairness.

Provided the critical features of the evidence are put to the jury in a way that will permit thejury to truly appreciate the issues and the defence presented, the trial judge will have met the standard required (R. v. Daley, at para. 57); i. Flawlessness in a charge to the jury is neither expected, nor required (O’Brien v. R., at paras. 25-26; Cormier v. R., 2012 NBCA76, 393 N.B.R. (2d) 118, at paras. 19, 25-26, leave to appeal refused [2012] S.C.C.A. No. 562 (QL)); j.

Even cases where the trial Judge simply read “…for several continuous hours of extended passages of evidence from the judge’snotes”, will not merit appellate intervention if the “…the length of the charge did not mislead or confuse the jury or otherwise have anadverse impact on the fairness of the trial” (R. v.

MacKay, at paras. 1-2). [para. 83] [76] To summarize, as was done in Bonnell, “a charge to a jury must be considered in its entirety, as well ascontextually: 1) appellate review is to be motivated by a case-specific review of substance, not form; 2) the reviewing court should applya functional approach; 3) a charge will be adequate if it contains instructions that allow jurors to comprehend the case before them and tofulfill their adjudicative mandate; and 4) flawlessness in a charge is neither expected nor required” (para. 84). [77] More specifically relevant to the alleged error respecting manslaughter in the jury charge at hand, R. v.Miljevic, 2011 SCC 8, [2011] 1 S.C.R. 203, provides guidance respecting instructions provided to a jury concerning manslaughter andmens rea.

In Miljevic, the jury requested a specific definition or examples of manslaughter to assist them in distinguishing betweenmurder and manslaughter. The trial judge refused to do so, fearing the jury would become confused. The judge’s response was approvedby the Supreme Court:

I would add only that the judge responded helpfully and correctly to the jury's questions. Moreover, unlike the situation in R. v. Layton,2009 SCC 36, [2009] 2 S.C.R. 540, the trial judge in this case encouraged the jury to pose a further question if his answer did not assistthem. The jury asked: "In 'layman terms' what is the difference between murder 2 and manslaughter? Examples? ...

A specific definitionof manslaughter?" With the approval of both Crown and defence counsel, the judge told the jury that the difference is in the accused'smental state and then reviewed the portion of his original charge setting out the mental element of second degree murder. He added thatthe jury was to take it as established that the appellant had killed the victim unlawfully but that to establish that this killing was murder,the Crown had to establish something more, the state of mind required for murder.

The judge declined to give the jury examples for fearthat they would not make the difference between murder and manslaughter any clearer. He explained to the jury that each case is drivenby its own facts, and the facts of one case or one example might not truly help them.

With respect to the jury's inquiry about a "specificdefinition of manslaughter", the judge told the jury that there is no specific definition of manslaughter in the Criminal Code, but he couldhelp them by saying that the killing in this case was either murder or manslaughter and that if the appellant was not proved to have hadthe mental state required for murder, then the killing is manslaughter. He concluded by encouraging the jury to formulate a furtherquestion if his answers did not assist them. In my view, there is no legal error as contended by the appellant in these instructions.

There is no reasonable possibility that the jurycould have misunderstood what had to be proved in order for them to return a guilty verdict on the charge of second degree murder.There is similarly no reasonable possibility that they could have misunderstood that if murder was not proved, they should return a guiltyverdict on the offence of manslaughter, as defence counsel had urged them to do. The instructions focussed the jury on the sole issue ithad to decide and gave them the correct legal principles necessary for them to do so. [paras. 2-3] [Emphasis added.] [78] In R v. Araya, 2015 SCC 11, [2015] S.C.J.

No. 11 (QL), the Supreme Court of Canada once again discussesthe approach to be taken when faced with alleged errors in a trial judge’s jury instructions. In Araya, the Crown appealed from a decisionof the Ontario Court of Appeal setting aside a conviction for manslaughter. Mr. Araya had been convicted of manslaughter for hisalleged involvement in a shooting that took place in a park. Shortly after the shooting, Mr. Araya had approached a teacher at his school;the teacher testified Mr. Araya told him that he had been with the group who robbed and shot the victim, but that he had not fired thegun. Mr.

Araya testified at trial that he had spoken to the teacher, but did not mention being in the park where the shooting occurred orhaving any involvement in it. Further, eyewitnesses had provided general descriptions of the assailants. Mr. Araya’s appearance hadchanged between the time of the shooting and the trial, so the Crown sought to admit two photographs of Mr. Araya taken five days afterthe shooting in order to establish what he would have looked like at the time of the incident.

The trial judge gave lengthy instructionsaddressing the photographs and issues relevant to the jury’s deliberations, including the issue of the eyewitness descriptions and theirrelationship to the photographs. [79] The Ontario Court of Appeal overturned the conviction, finding the instructions given to the jury wereinsufficient with respect to cautioning the jury against making improper inferences with respect to the photos submitted at trial.

TheSupreme Court of Canada allowed the appeal by the Crown, restored the conviction for manslaughter and remitted the matter to theCourt of Appeal for consideration of the sentencing appeal. Rothstein J. instructs as follows: When considering an alleged error in a trial judge's jury instructions, "[a]n appellate court must examine the alleged error in the contextof the entire charge and of the trial as a whole": R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26, at para. 32, per LeBel J.

Further, trialjudges are to be afforded some flexibility in crafting the language of jury instructions: see Hay, at para. 48, citing R. v. Avetysan, 2000SCC 56, [2000] 2 S.C.R. 745, at para. 9. While trial judges must seek to ensure that their instructions adequately prepare the jury fordeliberation, the standard for jury instructions is not perfection. Appellate review of jury instructions is meant to "ensure that juries areproperly – not perfectly – instructed": R. v. Jacquard, (SCC), [1997] 1 S.C.R. 314, at para. 62, per Lamer C.J.

ThisCourt has emphasized that the charge generally should not be "endlessly dissected and subjected to minute scrutiny and criticism": R. v.Cooper, (SCC), [1993] 1 S.C.R. 146, at p. 163. As Bastarache J. has summarized it in R. v. Daley, 2007 SCC 53,[2007] 3 S.C.R. 523, at para. 30: The cardinal rule is that it is the general sense which the words used must have conveyed, in all probability, to the mind of the jury thatmatters, and not whether a particular formula was recited by the judge.

The particular words used, or the sequence followed, is a matterwithin the discretion of the trial judge and will depend on the particular circumstances of the case. Appellate courts should not examine minute details of a jury instruction in isolation. "It is the overall effect of the charge that matters":Daley, at para. 31. [para. 39]

He goes on to say: It is also relevant that Mr. Araya's trial counsel (not counsel on appeal) – the person in the courtroom most attuned to Mr. Araya'sinterests – did not object to the allegedly confusing and insufficient instruction at trial. This failure to object suggests that the phrasing ofthis instruction, heard in its full context in the courtroom, did not sound likely to confuse or to invite improper reasoning.

This Court hasstated that while defence counsel's failure to object to jury instructions is not determinative on appeal, it nonetheless "says somethingabout both the overall accuracy of the jury instructions and the seriousness of the alleged misdirection": Jacquard, at para. 38. Parsing the language in one particular sentence to determine whether it was sufficient to warn of an impermissible line of reasoning,without taking into consideration the greater context of the jury instructions and the trial itself, represents the kind of dissection andminute scrutiny this Court warned against in Cooper.

While the instruction regarding impermissible use was not perfect, I wouldemphasize Dickson CJ.'s comments in R. v. Corbett, (SCC), [1988] 1 S.C.R. 670, at p. 692, that "it would be quitewrong to make too much of the risk that the jury might use the evidence for an improper purpose. This line of thinking could seriouslyundermine the entire jury system" (emphasis in original). In this case, there does not appear to be a considerable risk that the jury wouldhave, as a consequence of minor imperfections with the jury instructions, abandoned their common sense and adopted the clearly flawedreasoning that because Mr.

Araya's appearance fit within a broad description that could have encompassed a great many individuals, hemust have been in Buttonwood Park. [paras. 51-52] [80] In this case, the trial judge said the following with respect to manslaughter and mens rea: […]Did Harry McKenna have the state of mind required for murder?

The crime of murder requires proof of a particular state of mind.For an unlawful – unlawful killing to be murder, Crown counsel must prove that Harry McKenna meant either to kill Kirk Blair or meantto cause Kirk Blair bodily harm that Harry McKenna knew was likely to kill Kirk Blair, and was reckless whether Kirk Blair died or not.The Crown does not have to prove both. One is enough. All of you do not have to agree on the same state of mind, as long as everyone issure that one of the required states of mind has been proven beyond a reasonable doubt.

If Harry McKenna did not mean to do either,Harry McKenna committed manslaughter. To determine Harry McKenna’s state of mind, what he meant to do, you should consider allthe evidence. You should consider: what he did or did not do, how he did or did not do it, and what he said or did not say. You shouldlook at Harry McKenna’s words and conduct before, at the time, and after the unlawful act that caused Kirk Blair’s death. All of thesethings, and the circumstances in which they happened, may shed light on Harry McKenna’s state of mind at the time. They may help youdecide what he meant or didn’t mean to do.

In considering all the evidence, use your good common sense. [Emphasis added.] […] If you are not satisfied beyond a reasonable doubt that Harry McKenna had either state of mind required to make his unlawful killing ofKirk Blair murder, you must find Harry McKenna not guilty of second degree murder, but guilty of manslaughter. [Trial transcript,November 4, 2013, pp. 97-98, 100] [Emphasis added.] [81] The judge clearly distinguished murder from manslaughter by correctly referring

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